In his report on the election tabled in August 2011, [Chief Electoral Officer Marc] Mayrand made brief mention of the "crank calls" that incorrectly advised voters of changed polling locations but there was no indication that these were a widespread or coordinated effort. Mayrand said only the Commissioner of Canada Elections was investigating.
That's taken from an article by Glen McGregor and Stephen Maher that was published last Friday. It reports on email communications involving Elections Canada officials and Conservative Party representatives in the last few days of the 2011 federal election campaign. That article has certainly stirred things up again.
It's now quite clear that even before the polls had closed on May 2nd of last year — fully 18 months ago — some at EC were already suspicious that there had been an organized effort to mislead voters. That's a lot more serious than "crank calls" and their suspicions were directed at the Conservative Party of Canada. And now every line of investigation that came up empty because investigators were too slow to get there takes on new significance.
In the specific case of the search for Pierre Poutine, the perpetrator of the fraudulent robocalls in Guelph, there were security videos that were destroyed and server logs that were erased. There's even a person of interest who originally refused requests to be interviewed and has now moved to Kuwait where he apparently has an unlisted phone number. And perhaps most importantly, there's a transaction log from the CIMS, the CPC's voter tracking system, that has a convenient hole in it which prevents the identification of the party who downloaded the call list used to make the calls. The media reports made it sound as though the EC investigator politely requested the appropriate information from the Conservatives and waited for the party to cooperate. Why?
It would be very interesting to find out exactly when that transaction log was originally requested, how that request was framed and exactly how and when the CPC responded. Given that party's history of playing fast and loose with election law and being uncooperative with investigators, the natural reaction would be to go straight to a production order or even a search warrant, and secure the logs before they could be scrubbed. If that isn't what happened, why not?
And why, three months after his own officials had already raised the possibility of an organized effort at election fraud, was Marc Mayrand playing the whole matter down as "crank calls"? How much further along might the investigation be if Mayrand had attached more importance to the concerns expressed by his own officials and been more forthcoming about them in public? Because it was only in February of this year, six months after Mayrand's report, that the first investigative piece by McGregor and Maher pushed this into the spotlight and elicited a slew of fresh complaints from voters.
Elections Canada has promised a report by March 31st of next year to recommend revisions to election law. In preparation for that the agency recently published a discussion paper. It begins with a summary of the "alleged improper communications" that took place during last year's campaign, provides legal context and then discusses the challenges investigators face and suggestions for improving the agency's ability to enforce the law.
And earlier this week The Hill Times reported that the agency is "undertaking an unprecedented level of public consultation" in consideration of the issues involved. There are a number of complex issues such as the rapid development of technology and its implications for a 21st century election campaign, whether political parties should be subject to the Do Not Call registry and whether — and how — privacy laws should apply to the information gathered by political parties. That's in addition to the obvious question of whether there should be tougher penalties for violations.
It all looks very thorough and here's hoping that when the report is finally tabled, the Harper government takes it all to heart and makes sensible revisions to the governing legislation.
But new laws won't make much difference if they're not enforced. New investigative tools won't have much effect if investigators are reluctant to use them or don't bring them to bear until the trail's gone cold. And harsher penalties won't make a difference if no one is ever charged. In a McGregor and Maher article from earlier in the month they wrote:
The agency reports that its investigation into the "Pierre Poutine" robocalls that sent voters to the wrong poll in Guelph, Ont., on election day is ongoing, but concedes that there is only limited chance of Criminal Code charges resulting from that investigation.
It's entirely possible that an investigation moving at a faster pace wouldn't have made any difference. But it's hard to tell from here. If Elections Canada follows its normal practice of telling us as little as possible, this investigation could peter out without criminal charges being laid and we would never know the details surrounding it.
We have a right to know. If we're reviewing the laws that govern elections and the tools available to those who investigate possible violations of those laws, shouldn't we review the methods and performance of the investigating agency at the same time? If those who run the agency are in the mood to consult with the public to an unprecedented degree, perhaps they'd like to communicate with us to an unprecedented degree as well.
In that vein, recent revelations have prompted Democracy Watch to renew its call for full disclosure by Elections Canada regarding its handling of past complaints and for a public inquiry into the agency's methods and operations. You can read all about it.